Jaramillo Cert. Reply & Was Apprendi really from Indiana?

A volunteer elf has sent me an HTML version of the State's cert. reply in Jaramillo. Smylie is set for conference (again?) on October 28th; Jaramillo has not yet been scheduled.

The AG's Jaramillo reply is brief and essentially accuses Jaramillo of making a sneak attack on Almendarez-Torres via the Double Jeopardy Clause instead of the Due Process Clause. As the reply points out, the Court would have to take two steps at once to grant Jaramillo relief: first it would have to overrule Almendarez-Torres, saying that prior convictions are now subject to Apprendi and Blakely; second, it would then have to say that prior convictions are the effective equivalent of elements and that, therefore, retrial after a failure to convict because of insufficient evidence bars retrial. Whether that really is two steps, though, is an interesting question. If Almendarez-Torres is overruled and even prior convictions become the functional equivalent of "traditional elements," then "functional equivalency" must have certain entailments--including the well-established double jeopardy rule of Burks v. United States, 427 U.S. 1 (1978).

I think the Indiana AG is way off the track, however, when he suggests that the Court should not take the case because there is no disagreement among the lower courts. How could there be? Recall Roper v. Simmons, which I thought was most remarkable for the fact that the Missouri Supreme Court had taken upon itself the job of overruling Stanford v. Kentucky. Justice O'Connor's dissent in Roper did not let that anomaly pass without notice; and there are not many appellate courts willing to follow in the Missouri Supreme Court's footsteps. (The Indiana Court of Appeals' Jaramillo opinion, oddly, seems to say that the court could have overrulled both Almendarez-Torres and Monge: "Jaramillo’s argument is plausible, but by no mean unassailable. Accepting the argument requires a fair amount of speculation on our part concerning the way certain Justices would assess particular components of the analysis Jaramillo presents. We would prefer to take the guesswork out of the exercise altogether, and so will leave it to the Supreme Court to decide for itself whether a new view on that question should carry the day.")

I have been meaning to write about what's wrong with Jaramillo. It turns out that a great deal more is wrong with it than I thought, even if the apparently unobjectionable Monge analysis is fine with respect to federal law. It would appear, however, that Apprendi without the Almendarez-Torres exception for prior convictions was the common law rule in Indiana at least as early as 1898, when the Indiana Supreme Court said:

It is insisted by appellant that as a former conviction of petit larceny was not averred in the affidavit and information, no question concerning grand larceny or the punishment therefor was presented, and therefore the court erred in giving any instruction as to the right of the jury to find the appellant guilty of grand larceny, and that for the same reason the verdict was contrary to law.

The doctrine that when a statute imposes a greater punishment upon second and subsequent convictions of an offense, that the former conviction must be alleged in the indictment and proved at the trial, or the same can only be punished as a first offense, is sustained by the great weight of the authorities. Wharton's Crim. Pl. and Prac. (9th ed.), section 935; Bishop's Directions and Forms, section 91; 1 Bishop's Crim. Proc., section 101; Bishop's Stat. Crimes, sections 240, 981, 1044; 1 Bishop's Crim. Law, sections 959-964; Clark's Crim. Proc., pp. 203, 204; Maguire v. State, 47 Md. 485; Plumbly v. Commonwealth, 2 Metc. (Mass.) 413; Tuttle v. Commonwealth, 2 Gray 506; Commonwealth v. Holley, 3 Gray 458; Garvey v. Commonwealth, 8 Gray 382; Commonwealth v. Miller, 8 Gray 484; Commonwealth v. Harrington, 130 Mass. 35; Rauch v. Commonwealth, 78 Pa. 490; Rand v. Commonwealth, 50 Va. 738, 9 Gratt. 738; State v. Adams, 64 N.H. 440, 13 A. 785; State v. Gorham, 65 Me. 270.

Evans v. State, 150 Ind. 651, 653-54 (1898). Evans is not quite as simple as the above snippet would appear, but it has never been overruled. Perhaps no state law argument was presented to the Indiana Supreme Court in Jaramillo. Maybe it should have been. I'm trying to track down how Evans seems to have largely disappeared over time. My instinct is that it has to do with the Indiana appellate courts, especially the Indiana Supreme Court, lazily cribbing the work of the U.S. Supreme Court--which, if true, provides its own irony in view of the number of times the Seventh Circuit has concluded, especially in habeas death penalty cases, that the Indiana Supreme Court has unreasonably applied federal law as determined by the United States Supreme Court--to the extent it has applied federal law at all.

If the references to Bishop in Evans seem familiar, they should. They are all over Blakely; Apprendi, and Justice Thomas's Apprendi concurrence, joined by Justice Scalia, and which advocates "a broader rule" than Apprendi--i.e., no prior conviction exception. Actually, Justice Thomas's Apprendi concurrence cites Evans. One might even say that it is, in large part, based on Evans, judging from the following snippet:

[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact--of whatever sort, including the fact of a prior conviction--the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.

Or is the petit-grand larceny example just an accident?

So there would be a certain poetry to the Court using an Indiana case . . . say, Jaramillo . . . to do in Almendarez-Torres. And we had Justice Souter writing Jones, Justice Stevens writing Apprendi and Booker, Justice Ginsburg writing Ring, and Justice Scalia writing Blakely. Who's missing from the Apprendi Five? Time for a Thomas opinion, isn't it, doing in Almendarez-Torres, which Justice Thomas now says he regrets having joined?